Friday, June 18, 2010

Supreme Court Nominations in Historical Perspective (Part Two)

The prior post speculated about some novel features of the recent nomination and confirmation process.Now for some thoughts about other features that seem relatively novel but, in some sense, are not.Again, a cautionary note about the fact that I’m going to make some large generalizations, which are subject to qualification in the details as applied to specific nominations.

The conventional and not inaccurate wisdom is to date the modern process to the Bork nomination, which featured, for the first time, large-scale participation by modern “checkbook” interest groups – interest groups without true members and focused primarily on ideological questions rather than on specific material benefits the government (including the courts) could provide (or deny). Interest groups had played a role in earlier nominations, most notably the defeat of the nomination of John J. Parker in 1930, but there the groups were traditional interest groups, the NAACP and labor unions– which had real members, rather than a membership consisting of people who wrote checks to support the organization and did essentially nothing else.Checkbook or ideological interest groups have played a part in nearly every nomination since Bork’s.

But, if the participation of ideological interest groups is new in one sense, it is quite traditional in another.The broadest generalization one can make about the process of nomination and confirmation is that it will be roughly the same as contemporaneous political processes about essentially every other issue, at least insofar as those processes involve personnel as well as substance.At a time when ideological interest groups play a large role in the development of health care policy (with traditional interest groups playing a secondary role), ideological interest groups will play a large role in the nomination and confirmation process (with traditional interest groups playing a secondary role). When traditional interest groups were given representation in administrative agencies, they were given representation on the Supreme Court.When presidents appointed their personal acquaintances and cronies to administrative agencies, they appointed personal acquaintances and cronies to the Supreme Court.And, notably, when personnel policy was patronage-driven, so were Supreme Court nominations.(My favorite example is the failed nomination of Ebenezer Hoar, an entirely well-qualified nominee, because he came from the reform wing of the Republican party when the Senate was controlled by the patronage-oriented wing.)

For historians, the interesting question then is not really about precisely why a specific nomination and confirmation process took the form that it did, but is rather about why and how the larger political processes changed as they did.Understand that and you’ll understand the larger dynamics of the Kagan nomination.